Citation Nr: 0028346
Decision Date: 10/27/00 Archive Date: 11/01/00
DOCKET NO. 97-26 575A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to waiver of recovery of an overpayment of
Chapter 31 education benefits.
(The issues of increased evaluations for the residuals of a
left ankle fracture and degenerative arthritis of the left
wrist and a compensable evaluation for the residuals of a
right ulna fracture are the subject of a separate Board of
Veterans' Appeals decision)
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Hilary L. Goodman
INTRODUCTION
The veteran apparently had active service from September 1976
to June 1991.
This appeal arises from a decision in September 1997 by the
Committee on Waivers and Compromises (Committee) in the
Department of Veterans Affairs (VA) Regional Office, Detroit,
Michigan, denying the veteran's request for waiver of
recovery of an overpayment of Chapter 31 education benefits.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
originating agency.
2. The failure by VA to promptly process the notice of the
veteran's reduction in credits and the veteran's negotiation
of full Chapter 31 education payments contributed to the
creation of the overpayment.
3. Fault in creating the overpayment on the part of the
veteran was minimal and fault on the part of the VA was most
significant.
CONCLUSION OF LAW
Recovery of the indebtedness would be against equity and good
conscience. 38 U.S.C.A. §§ 5107, 5302 (West 1991 & Supp.
1999); 38 C.F.R. §§ 1.963, 1.965 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran is seeking waiver of recovery of an overpayment
of Chapter 31 education benefits. The veteran, who had been
approved and was attending school under the Vocational
Rehabilitation program, was apparently receiving payment at
the full time rate for the spring term, effective March 1,
1997. His attendance was changed to 10 credit hours,
resulting in a reduction to the three-quarter time rate for
the term. In June 1997 the veteran's award was amended,
reducing his Vocational Rehabilitation award, effective March
1, 1997, resulting in an overpayment of $272.81. The amount
of the overpayment is not in dispute.
The Committee determined that the overpayment could not be
attributed to fraud, misrepresentation or bad faith on the
part of the veteran. The Board of Veterans' Appeals (Board)
concurs with this finding. Therefore, the sole question for
consideration by the Board at this time is whether collection
of the indebtedness should be waived under the principles of
equity and good conscience. Recovery of an overpayment of
any VA benefit may be waived if recovery of the indebtedness
from the payee would be against equity and good conscience.
38 U.S.C.A. § 5302; 38 C.F.R. § 1.963(a).
The factors which must ordinarily be considered are the
extent to which the actions of the veteran contributed to the
creation of the debt, a weighing of the fault on the part of
the veteran against any VA fault, whether collection would
deprive the veteran and his family of basic necessities,
whether recovery would nullify the objective for which the
benefits were intended, whether failure to make restitution
would result in unfair gain to the veteran, and whether the
reliance on the VA benefits resulted in relinquishment of a
valuable right or incurrence of a legal obligation. 38
C.F.R. § 1.965.
In considering these factors, the Board finds that there was
some fault on the part of the veteran in that Chapter 31
education payments, which were continued at the full rate
after his reduction to 10 credit hours, continued to be
negotiated. Although the veteran was at fault, the degree
was minimal as compared to that of the VA. The veteran has
related, and there is nothing in the current record before
the Board that disputes this, that he promptly notified his
VA counselor of the reduction and was told not to worry about
it. It would appear that the VA did not take action to
reduce the payments for several months.
The Financial Status Report was completed by the veteran and
his spouse in September 1997. The information contained in
the Financial Status Report, which showed total monthly net
income of $1,266 and total monthly net expenses of $1,329, is
outdated and a remand for the veteran to complete a new
Financial Status Report might otherwise be required.
However, as the overpayment in question was apparently
created primarily by the inaction on the part of the VA in
the account of a veteran who reportedly took reasonable
efforts to avoid the creation of an overpayment, it is the
judgment of the Board that recovery of the overpayment would
be against equity and good conscience. 38 U.S.C.A. § 5302;
38 C.F.R. §§ 1.963, 1.965.
ORDER
Entitlement to waiver of recovery of an overpayment of
Chapter 31 education benefits is granted.
F. JUDGE FLOWERS
Veterans Law Judge
Board of Veterans' Appeals